Owning the Past? The Digital Historian’s Guide to Copyright and
Intellectual Property

Fair Use

he alternative to asking permission (or at least looking for someone to ask) is deciding you don’t need to ask because your use is “fair.” But what’s “fair” is a philosophical, ethical, and legal question with no easy answer. Many people mistakenly assume that there is a “law” that tells you what constitutes “fair use.” Unfortunately fair use is, in the words of library law consultant Mary Minow, the “grayest area of copyright law.”46 Section 107 of the 1976 Copyright Act explains that “fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” and then lists the following four nonexclusive factors to be used in determining fair use (our parenthetical comments are added):

“The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” (nonprofit educational uses are more likely to be fair as are those involving criticism, commentary, and parody);

“The nature of the copyrighted work” (uses of creative and unpublished works are less likely to be fair; uses of factual, published, and out-of-print works are more likely to be fair);

“The amount and substantiality of the portion used in relation to the copyrighted work as a whole” (the smaller and less “central” the portion used, the more likely it is to be fair);

“The effect of the use upon the potential market for or value of the copyrighted work” (using out-of-print works and works for which there is no permissions market is more likely to be fair).

Unfortunately no magic formula balances these four factors. Minow notes that “courts often weigh” the market factor more heavily than the other three even though a 1994 U.S. Supreme Court decision says that it is no more important than the others. And recent trends give more weight to critical uses—an advantage to historians who discuss the works they are using as examples. The University of Georgia copyright guide notes that the four factors are not even exclusive; other facets (e.g., the ability to locate the copyright holder) can come into play and fair use determination needs to be made “on a case-by-case basis in order to protect the constitutional rights of users.” Some guides, however, offer various benchmarks (e.g., only use a certain number of words), but the Georgia guide correctly rejects that approach as “without statutory authority” and insists that such guidelines “cannot legally mean that copying in excess of the guidelines is infringement.” Even the Chicago Manual of Style, which previously offered some rough quantitative guidelines, now acknowledges that such “rules of thumb” have “no validity” and exist largely to ease the burdens on “an overworked permissions department.”47

The biggest mistake that historians make is to apply only one of the four factors, and say, for example, “I am nonprofit and educational” and that makes my use fair. But if you placed online the history textbook that you assigned to your students, you could not argue that the use is “fair” because you are directly competing with the textbook company. Does that mean you cannot post any copyrighted material online? It is probably all right for you to post a chapter from a copyrighted book but only if you restrict access to the website to just the students in your class. If you open it to the entire web (and world), you are infringing the “copyright holder’s right of public distribution.”48 The situation gets more complicated if you provided restricted access to the same book chapter every semester. In that case, the fairness of your use might depend on whether or not the book was in print and readily available.

A further set of complications arises for those who want to take advantage of the TEACH Act, which was passed in 2002 to deal with the use of copyright materials in distance education. On the one hand, it expands the range of copyrighted works that can be presented online (portions of films and songs are permitted, for example) and locations to which such works can be transmitted in an effort to give distance educators similar rights to those open to instructors in a face-to-face classroom. As such, the TEACH Act offers what one legal scholar calls “the best legislative solution to the barriers that copyright law imposes on online education that educators can hope to achieve in the near future.” But on the other hand, the law subjects you to some significant and stringent limitations. For example, only accredited nonprofit institutions qualify, access must be limited to enrolled students in the context of “mediated instructional activities,” and institutions must take steps to “reasonably prevent” the unauthorized retention and dissemination of copyrighted works presented online.49

Though it is dangerous and unethical to play fast and loose with fair use, it is equally a mistake to proceed too cautiously. As historian David Stowe points out in a perceptive article, those who unquestionably agree to every demand from rights holders “simply institutionalize a property right that doesn’t exist.” And their unquestioning compliance undercuts the ability of others to claim fair use rights. “Without being exercised,” Stowe argues, “the right to fair use will simply atrophy.” Even the more cautious Chicago Manual warns against seeking permission where there is on the slightest doubt because “the right of fair use is valuable to scholarship, and it should not be allowed to decay because scholars fail to employ it boldly.”50

46 Mary Minow, “How I Learned to Love FAIR USE,” Copyright & Fair Use: Stanford University Libraries, ↪link 7.46a. Probably the best (but also the most complex) of those online copyright guides comes from the University of Georgia and reflects the influence of L. Ray Patterson, a leading copyright expert who teaches at Georgia’s Law School and was also a member of the committee that drew up the guide. Regents Guide. Stanford University Libraries have recently revamped their pages on copyright and fair use, which contain some excellent materials. See, for example, Mary Minow’s valuable discussion of fair use. See also Linda Starr, “Part 2: Is Fair Use a License to Steal?” Minow also offers valuable coverage of issues concerning libraries and the law (especially copyright issues) on her LibraryLaw Blog, ↪link 7.46b, which also has Peter Hirtle and Ralzel Liebler as contributing authors.

47 Minow, “How I Learned to Love FAIR USE”; Regents Guide; Chicago Manual of Style, 15th ed. (Chicago: University of Chicago Press, 2003), 135. Chicago Manual of Style, 14th ed. (Chicago: University of Chicago Press, 1993), 144–48. Compare A Manual of Style, 10th ed. (Chicago: University of Chicago Press, 1949), 199. Questions of what is permissible in terms of critical commentary and parody continue to be litigated, as in, for example, the suit against Alice Randall’s novel, The Wind Done Gone, which rewrote Gone with the Wind from a black perspective, for infringing the copyright of the Margaret Mitchell estate. Randall’s publisher, Houghton Mifflin, lost in the District Court, won in the Court of Appeals, and then settled. David Kirkpatrick, “Mitchell Estate Settles ‘Gone with the Wind’ Suit,” New York Times, 10 May 2002, C6.

49 Kenneth D. Crews, New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act (Chicago: American Library Association, 2002), ↪link 7.49a; Kristine H. Hutchinson, “The TEACH Act: Copyright Law and Online Education,” New York University Law Review 78.6 (December 2003), 2224, ↪link 7.49b. As Hutchinson notes, some administrators believe that this requirement about unauthorized retention would require universities to develop new technology to track what students do with the copyrighted material after it is downloaded. As a result, some universities have been reluctant to take advantage of the law and have continued to license materials, as they had done before (pp. 2233–34).